Legal marijuana: Colorado businesses await court decision

Now that marijuana use in Colorado is legal both medicinally and recreationally, what are employers to do about it? How legal is marijuana when it comes to employment law?

"I look at it as, (Colorado is) a petri dish," employment law attorney Julie Pate-Gurule told a group of businesspeople gathered at a Longmont Area Chamber of Commerce breakfast Wednesday. "We don't know what's going to come out of this. ... The spotlight of the country is on us."

The medical use of marijuana has been legal for far longer than recreational pot use, which became legal in the state Jan. 1. Though medical marijuana had been around since 2000, it wasn't until 2010 that the Colorado Legislature passed laws governing that industry.

Last year, a governor-appointed task force put regulations into effect to manage the recreational pot market.

Those laws and regulations, especially given that marijuana remains illegal on the federal level, are sure to be tested in court, and that's already started, Pate-Gurule said. What comes out of those court decisions will be precedent-setting, she added.

"Other states are incredibly intrigued by the money" marijuana taxes are generating for Colorado, she said. Through May, consumers purchased nearly $256 million worth of recreational and medicinal marijuana, Pate-Gurule said, citing Department of Revenue statistics. Those ringing cash registers are generating tens of millions in tax revenue.

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So it's big business in Colorado, but what about employers concerned about their employees using the drug?

On the recreational side, said Pate-Gurule, founder and president of Employment Compliance Solutions, the language in Amendment 64 is unambiguous: There's nothing in the statute that requires an employer "to permit or accommodate the use, consumption, possession ... transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees."

"After Amendment 64 passed, some thought employers would stop drug testing," Pate-Gurule said. "That's not what happened in Colorado. We've seen an increase in the number of employers that have drug tested that never did before."

On the medical use side, there's a case being taken up this summer by the Colorado Supreme Court that she's keeping a close eye on, Pate-Gurule said.

It involves what employees are allowed to do in their off-hours.

The case is Coats vs. Dish Network. An employee named Brandon Coats is a quadriplegic who had a medical marijuana card, granting him permission to use the drug to treat his symptoms. But under testing by his employer, Dish Network, Coats tested positive for marijuana and was fired under its "no tolerance" policy.

The question is whether that firing is legal under state law. Coats sued and lost at both the trial level and the appeals court level, and next up is the state Supreme Court.

Pate-Gurule said Colorado's "Lawful Activities Statute" prohibits an employer from firing an employee engaged in a lawful activity while not at work. But the Supreme Court will have to decide whether the medical marijuana amendment to the state constitution makes its use "lawful" or merely "permissive."

"From an employment perspective, this is a big deal," she said.

If the court rules that medical marijuana use is "lawful," then Coats firing was not justified, she said.

In its majority ruling, the appeals court noted that the drug is illegal at the federal level. However, two months after that ruling, the US. Department of Justice issued a memo that said it would enforce only certain types of marijuana laws; for example, selling to children, or transporting it across state lines.

The memo also said that in states that have enacted laws legalizing marijuana "in some form" — and medical marijuana is legal in more than two dozen states — "the federal government is giving total deference to the state," Pate-Gurule said.

Depending on how the Supreme Court rules, it could drastically affect the way employers are allowed to conduct their drug testing, Pate-Gurule said. And states all over the country will take note because it's such new territory, she said.

"It's probably the most interesting case I've seen in the 15 years I've been practicing law," Pate-Gurule said.

She added that she fully expects a similar suit in the future, this time regarding recreational pot use.

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